In a scenario that seems to be playing out more and more throughout the country, given the prevalence of FLSA collective action filings, this court was faced with a decision regarding which type of scrutiny to apply to plaintiffs’ motion for conditional certification of a collective action. Although the plaintiffs filed their motion only three (3) months into discovery, by the time the court was able to address the motion, discovery had concluded. While the plaintiffs maintained that the court should apply Stage I scrutiny, the defendants argued that Stage II scrutiny (or “final certification” scrutiny) should be applied, because discovery had been completed after plaintiffs filed their motion. The court reasoned that the lower Stage I scrutiny should be applied, based on the posture of the case when plaintiffs filed their Motion, not when the decision was rendered.

Discussing the issue, the court explained:

Plaintiffs and Defendants dispute whether this suit is in the first or second phase of inquiry. Defendants argue that this case is fully discovered, as the parties have produced more than 3,500 documents, served multiple sets of interrogatories and requests for production, and have taken six depositions. (Doc. 24, at 23). Plaintiffs filed their motion for conditional certification eight months after discovery opened, and five months before discovery closed on March 29, 2013. (Id.). Plaintiffs argue that because no discovery was permissible prior to the February 13, 2012 26(f) conference, and the parties agreed to postpone discovery pending mediation in July 2012, discovery had occurred less than three months before their motion for conditional certification was filed. (Doc. 26, at 8). Before Plaintiffs’ motion was filed in October, only three depositions had been taken. (Id.)

This Court finds that this suit is in the first phase of inquiry. Discovery closed on March 29, 2013, and Plaintiffs’ motion was filed in October 2012. Thus, discovery had not completed by the time Plaintiffs’ motion was filed. Moreover, as Plaintiffs correctly point out, only three out of eight total months of discovery took place before their motion was filed.

In ruling on Plaintiff’s motion, the Court’s analysis will employ the first phase of inquiry.